Appeal from the Superior Court ofPierce County The ... Respondents Brief.pdfNO. 42257-113-COURT OF...

NO. 42257-3-11

COURT OF APPEALS, DIVISION IISTATE OF WASHINGTON

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Appeal from the Superior Court of Pierce CountyThe Honorable Frederick W. Fleming

1 i l' : 1

Corrected Brief of Respondent /Cross- Appellant

MARE. LINDQUISTProsecuting Attorney

ByThomas C. Roberts

Deputy Prosecuting AttorneyWSB # 17442

930 Tacoma Avenue South

Room 946

Tacoma, WA 98402PH. (253) 798 -7400

Table of Contents

A. ISSUES PERTAINING TO APPELLANT'S ASSIGNMENTS OF

ERROR. .......................................................................................... I

I Whether the State adduced sufficient evidence to prove,beyond a reasonable doubt, all the elements of the crimescharged against the defendant? ............................................ I

2. Whether the prosecuting attorney committed misconduct inclosing argument regarding the law of mens rea ofaccomplice liability? ............................................................ I

3. If the prosecuting attorney misstated the law, whether anew trial is warranted where the jury was properlyinstructed? ........... I ........... I ....................................................

4. Whether the trial court properly admitted statements madeby the defendant at the time of his arrest? ........................... 1

5. Whether the appellate court should consider issues whereno assignment of error has been made? ............................... 1

6. Whether the court's findings regarding the January CrR 3.6hearing are supported by evidence?..... ................................ 1

7. Whether the court erred in finding that police entry of themotel room was lawful under exigent circumstances? ........ 1

8. Whether police had probable cause to arrest thedefendant? ............................................................................ I

9. Whether police could lawfully contact the defendant at themotel room without probable cause to arrest? ..................... I

10. Whether the defendant was entitled to an instruction that

rendering criminal assistance is a lesser-included offense ofMurder in the first degree? .................................................. 2

11. Whether the court could impose an exceptional sentence,based upon accomplice liability? ......................................... 2

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12. Whether the trial court abused its discretion in permittingspectators to attend trial wearing shirts commemorating thevictims? ................................................................................ 2

B. STATEMENT OF THE CASE ........................ ............................... 2

1. Procedure ............................................................................. 2

2. Facts .......................................................................... .......... 3

C. ARGUMENT ......... ....................................................................... 5

1 THE STATE ADDUCED SUFFICIENT EVIDENCE FOR

THE JURY TO FIND ALL THE ELEMENTS OF THE

CRIMES CHARGED, BEYOND A REASONABLEDOUBT................................................................................ 5

2. THE PROSECUTING ATTORNEYS DID NOT COMMIT

MISCONDICT IN CLOSING WHERE THEY ARGUED

THE LAW AS PROVIDED IN THE JURY

INSTRUCTIONS ............... ............................... I I

3. THE TRIAL COURT DID NOT ERR IN DENYING THE

DEFENDANT'SMOTION TO SUPPRESS

STATEMENTS MADE DURING HIS ARREST ............ 18

4. THE TRIAL COURT DID NOT ERR IN DECLINING TO

INSTRUCT THE JURY WHERE RENDERING

CRIMINAL ASSISTANCE IS NOT A LESSER-

INCLUDED OFFENSE OF FIRST-DEGREE

MURDER........... ............................................................. 24

5. FACTORS FOR A SENTENCE OUTSIDE (ABOVE) THESTANDARD SENTENCING RANGE APPLY TO ALL

PARTICIPANTS IN A CRIME ....................................... 26

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10:1VMOMAs IaHIN IND] 041a10 11111 1 •

WITH CERTAIN SPECTATORS' RIGHTS UNDER THE

FIRST AMENDMENT OF THE UNITED STATES

CONSTITUTION AND ARTICLE 1, § 22 OF THE

STATE CONSTITUTION ................................................. 31

ERROR . ................................................ .... 35

1. The trial court abused its discretion where, considering theevidence in the light most favorable to the State, it foundthat no reasonable juror would have found all the elementsof felony murder, specifically that the principal actor,Maurice Clemmons, intended to assault the victims ......... 35

2. The trial court erred in finding that the evidence requiredthe jury to find the defendant guilty or not guilty ofpremeditated murder, but not felony murder in the seconddegree................................. ............................................... 35

E. ISSUES PERTAINING TO APPELLANT'SASSIGNMENTS 010ERROR ........................................................................................ 3M

Whether the trial court accorded the proper weight to theState's evidence of felony murder? ................................... 36

2. Whether the evidence applied only to the theory ofpremeditated murder, to the exclusion of felony murder?Whether the evidence required a verdict of all ornothing/"stop or go", in the words of the trial court, to theexclusion of a jury verdict on felony murder? ................... 36

3. Whether the evidence [in the light most favorable to theState] could have supported a verdict of felony murder,predicated on assault? ........................................................ 36

iii

F. ARGUMENT ................................................................. .............. 36

1. THE TRIAL COURT ERRED IN DISMISSING COUNTSV- VIII, FELONY MURDER ........................................... 36

G. CONCLUSION ........................................................................ 39-40

Table of Authorities

State Cases

Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205,210,848 P.2d 1258 (1993) ............................................................................ 31

In re Personal Restraint ofAndress, 147 Wn.2d 602,56 P.3d 981 (2002) ................................................................................ 38

In re Personal Restraint of Woods, 154 Wash.2d 400, 416,114 P.3d 607 (2005) .............................................................................. 32

Slattery v. City ofSeattle, 169 Wash. 144, 148, 13 P.2d 464 (1932) ....... 15

State v. Afana, 169 Wn.2d 169, 182-183, 233 P.3d 879 (2010) .............. 22

State v. Anderson, 63 Wn. App. 257, 818 P.2d 40 (1991), review denied,118 Wn.2d 1021 (1992) ........................................................................ 25

State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997) ............. I ......... 18

State v. Belieu, 112 Wn.2d 587, 600, 773 P.2d 46 (1989) ....................... 22

State v. Berube, 150 Wn. 2d 498, 511, 79 R 3d 1144 (2003) .............. 6,16

State v. Binkin, 79 Wn. App. 284,293-294,902 P.2d 673 (1995),overruled on other grounds by State v. Kilgore, 147 Wn.2d 288,53 P.3d 974 (2002) ................................................................................ 11

State v. Bone-Club, 128 Wn. 2d 254, 259-260, 906 P. 2d 325 (1995) ..... 31

State v. Brockob, 159 Wn.2d 311, 336,150 P.3d 59 (2006) ............... 5,37

State v. Cardenas, 146 Wn. 2d 400,47 P. 3d 127 (2002) ........................ 20

State v. Carter, 154 Wn.2d 71, 78, 109 P.3d 823 (2005) ................... 25,26

State v. Carver, 122 Wn. 2d 300, 306, 93 P. 3d 947 (2004) .................... 11

State v. Classen, 143 Wn. App. 45, 64-65 n. 13, 176 P.3d 582 (2008) .... 13

MAC

State v. Collins, 112 Wn.2d 303, 306-307, 771 P.2d 350 (1989) .............37

State v. Collins, 121 Wn.2d 166, 173, 847 P.2d 919 (1993).. . ................22

State v. Davenport, 100 Wn. 2d 757, 675 P.2d 1213 (1984) ...................15

State v. Delmarter, 94 Wn.2d 634, 63 8, 618 P.2d 99 (1980) ..................... 6

State v. Emery, 174 Wn. 2d 741, 762, 278 P. 3d 653 (2012) ...................15

State v. Eserjose, 171 Wn. 2d 907, 912, 259 P. 3d 172 (2011) ................18

State v. Everybodytalksabout, 145 Wn.2d 456, 39 P.3d 294 (2002) ......... 6

State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 570 (1995) ....................11

State v. Graham, 130 Wn.2d 711, 726, 927 P. 2d 227 (1996) ................... 9

State v. Gregory, 158 Wash.2d 759, 809, 147 P.3d 1201 (2006) .............12

State v. Hawkins, 53 Wn. App. 598, 769 P. 2d 856 (1989) .....................26

State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994) .........................18

State v. Hoffman, 116 Wn.2d 51, 104, 804 P.2d 577 (1991)... 6, 11, 16,34

State v. Hopson, 113 Wn.2d 273, 284-85, 778 P.2d 1014 (1989) ...........35

State v. Jesse, 65 Wn.2d 510, 512, 397 P.2d 1018 (1965) .......................37

State v. Klinker, 85 Wn.2d 509, 521, 537 P.2d 268 (1975) .....................22

State v. Lord, 161 Wn. 2d 276, 284, 165 P. 3d 1251 (2007) .............. 32,33

State v. Louthan, 158 Wn. App. 732, 741, 242 P. 3d 954 (2010) ...... 22,23

State v. McDaniel, 155 Wn. App. 829, 853-854,230 P. 3d 245 (2010) ....9

State v. McKim, 98 Wn.2d 111, 653 P.2d 1040 (1982) ................ 27,28,30

State v. Nall, 117 Wn.App. 647, 650, 72 P.3d 200 (2003) .......................23

State v. Perebeynos, 121 Wn. App. 189, 196, 87 P. 3d 1216 (2004) .......12

State v. Pineda-Pineda, 154 Wn. App. 653,226 P. 3d 164 (2010) ................................................................. 27,28,30

State v. Puapuaga, 164 Wn. 2d 515, 520,192 P. 3d 360 (2008) .............37

State v. Rice, 102 Wn. 2d 120,125-126, 683 P. 2d 199 (1984) ...............38

State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000) .............................37

State v. Rohrich, 149 Wn.2d 647, 654, 71 P. 3d 638 (2003) ...................37

State v. Russell, 125 Wn.2d 24, 85-6, 882 P.2d 747 (1994) ....................11

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) ....................6

State v. Shipp, 93 Wn. 2d 510, 610 P. 2d 1322 (1980) ............................12

State v. Silva-Ballazar, 125 Wn.2d 472, 886 P.2d 138 (1994) ................27

State v. Smith, 165 Wn. 2d 511, 517-518,199 P. 3d 386 (2009) .............20

State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (200 1) .........................13

State v. Sweet, 138 Wn.2d 466, 980 P.2d 1223 (1999) ............................27

State v. Thomas, 150 Wn. 2d 821, 874, 83 P. 3d 970 (2004) ....................6

State v. Wagner-Bennett, 148 Wn. App. 538,200 P. 2d 739 (2009) .......23

State v. Warren, 165 Wn. 2d 17,195 P. 3d 940 (2008) ...........................11

State v. Weber, 99 Wn. 2d 158, 164, 659 P. 2d 1102 (1983) ...................14

State v. Womac, 160 Wn. 2d 643, 160 P. 3d 40 (2007) ..........................36

State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978) ............25

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Federal and tither Jurisdictions

Franks v Delaware, 438 U.S. 154, 98 S. Ct. 2674,57 L.Ed.2d 667 (1978) ............................................ ............................... 3

Holbrook v. Flynn, 475 U.S. 560, 570, 106 S. Ct. 1340,89 L.Ed.2d 525 ( 1986) ............................... ............................... 32, 33, 34

Smith v Phillips, 455 U.S. 209, 102 S. Ct. 940, 71 L.Ed.2d 78 (1982)... 14

Constitutional Provisions

Article 1, § 22 Of The State Constitution .................. ............................... 31

Article 1, §§ 10 and 22 of the Washington Constitution .......................... 31

First Amendment Of The United States Constitution ............................... 31

Fifth, Sixth and Fourteenth Amendments to theUnited States Constitution ..................................... ............................... 31

Statutes

Laws of 2003, chapter 3 § 2, Findings — Intent ......... ............................... 39

RCW 10.95.020

RCW69.50.435 ......................................................... ............................... 27

RCW 9.94A.533 ( 3)-( 13) ........................................... ............................... 28

RCW9.94A. 535 ......................................................... ............................... 28

RCW9.94A.535(2)(a) -(d) ......................................... ............................... 28

RCW9.94A.535(3)(a) ............................................... ............................... 28

RCW 9.94A. 535( 3)( a)-( cc) ........................................ ............................... 28

RCW9.94A.535(3)(b) ............................................... ............................... 29

viii -

RCW9.94A.535(3)(c) ............................................... ............................... 29

RCW9.94A.535(3)(i) ............................................... ............................... 29

RCW9.94A.535(3)(m) .............................................. ............................... 29

RCW9.94A.535(3)(n) ............................................... ............................... 28

RCW9.94A.535(3)(p) ............................................... ............................... 29

RCW9.94A.535(3)(r) and (v) ....................... ............................... 28, 29, 31

RCW9.94A.535(3)(Y) .............................................. ............................... 29

RCW ..,0

1:li

RCW 9A.08. 020(1), ( 2)( c) ......................................... ............................... 25

RCW9A.08. 020( 3) ...................................................... ............................... 6

RCW 9A.32.050(1)(b) ............................................... ............................... 39

RCW9A.76. 050 ................................................... ............................... 25,26

m

A. ISSUES PERTAINING TO APPELLANT'SASSIGNMENTS OF

ERROR.

1. Whether the State adduced sufficient evidence to prove,

beyond a reasonable doubt, all the elements of the crimes charged

against the defendant?

2. Whether the prosecuting attorney committed misconduct in

closing argument regarding the law of mens rea of accomplice

liability?

3. If the prosecuting attorney misstated the law, whether a

new trial is warranted where the jury was properly instructed?

4. Whether the trial court properly admitted statements made

by the defendant at the time ofhis arrest?

5. Whether the appellate court should consider issues where

no assignment of error has been made?

6. Whether the court's findings regarding the January CrR 3.6

hearing are supported by evidence?

7. Whether the court erred in finding that police entry of the

motel room was lawful under exigent circumstances?

8. Whether police had probable cause to arrest the defendant?

9. Whether police could lawfully contact the defendant at the

motel room without probable cause to arrest?

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10. Whether the defendant was entitled to an instruction that

rendering criminal assistance is a lesser-included offense of

Murder in the first degree?

11. Whether the court could impose an exceptional sentence,

based upon accomplice liability?

12. Whether the trial court abused its discretion in permitting

spectators to attend trial wearing shirts commemorating the

victims?

B. STATEMENT OF THE CASE.

1. Procedure

On March 2, 2010, the Pierce County Prosecuting Attorney (State)

charged the defendant with four counts of Aggravated Murder in the first

degree. CP 1-4. The charges included firearm sentencing enhancements

and allegations for an exceptional sentence. Id. The State later amended

the Information to include four counts of felony murder. CP 817-823.

After the State rested and the evidence had been heard, the court

dismissed Counts VNIII for insufficient evidence. 28 RP 3511.)

January 21, 2011, the trial court conducted a hearing under CrR3,6

regarding the defendant'smotion to suppress evidence discovered

pursuant to a search warrant. 1/21/2011 RP.

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Trial began on March 2, 2011, before the Hon. Frederick Fleming.

I RP 3. Before jury selection, the court held another CrR 3.6 hearing, this

time regarding issues under Franks v. Delaware, 438 U.S. 154, 98 S. Ct.

2674, 57 L.Ed.2d 667 (1978). 3 RP 153 ff. The court also held a hearing

under CrR3.5 regarding the admissibility of statements made by the

defendant. 2, 3, 4, 5 RP.

After hearing all of the evidence, the jury found the defendant

guilty of premeditated first degree murder. CP 2041-2044. The jury did

not find the aggravating circumstances as alleged under RC 10.95.020.

CP 2045-2048. The jury did find the firearm sentence enhancements (CP

2053-2056) and the circumstances for an exceptional sentence (CP 2049-

2056).

After the trial was over, the defendant filed a motion for a new

trial, based upon prosecutorial misconduct and juror misconduct. CP

2071-2084. The court denied the motion. 32 RP 3669.

On June 17, 2011, the trial court imposed exceptional sentences of

1200 months on each count, consecutive to each other. CP 2189; 2181.

The defendant filed a timely appeal on the same day. CP 2197.

2. Facts

Shortly after 8:00 a.m. on November 29, 2009, Maurice Clemmons

entered the Forza coffee shop on South Steele Street in Parkland,

Washington, and shot four Lakewood Police officers: Mark Renninger,

Ronald Owens, Tina Griswold, and Greg Richards. 17 RP 2114-2115,

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2166-2167, 2706, 21 RP 2746. Clemmons brought two guns with him; a

9mrn Glock semi-automatic pistol, and a.38 Smith and Wesson revolver.

18 RP 2286-2287. The 9mm. Glock became jammed as Clemmons fired.

18 RP 2286. He fired all six rounds contained in the .38 revolver. 18 RP

2287.

He shot Officers Renninger, Owens, and Griswold each once in

the back or side of the head, 18 RP 2374, 2381, 2385, 2387. When

Clemmons started shooting, Officer Greg Richards was at the counter,

ordering coffee (17 RP 2113); Officer Owens dove under a table for cover.

17 RP 2207. Nevertheless, Clemmons shot Owens below the left ear. 18

RP 2385. Officer Richards struggled with Clemmons and shot him once.

18 RP 2288, 19 RP 2442. Clemmons eventually disarmed Richards and

shot him once in the head with Richards' .40 caliber Glock pistol. 18 RP

2288, 19 RP 2442. Clemmons left the area and turned up in Seattle.

Clemmons was killed shortly thereafter by Seattle Police Officer

Benjamin Kelly, 21 RP 2831, 2833. At the time of his death, Clemmons

was still armed with Officer Richards' gun. 18 RP 2296, 21 RP 2833.

Shortly after 8:00 a.m. on November 29, 2009, Darcus Allen drove

Maurice Clemmons to the area of the Forza coffee shop on South Steele

Street in Parkland, Washington. 23 RP 2973, 2974, 2976; Exhibits 191,

291. Allen was driving Clemmons' white pick-up truck. 23 RP 2948.

Allen then drove to a self-service carwash approximately one-quarter mile

north on South Steele St. to wait for Clemmons. 22 RP 2877. Allen


remained at the carwash between 4 and 10 minutes. 22 RP 2878, 25 RP

3166. After killing the four officers, Clemmons walked from the Forza

coffee shop to the carwash. 17 RP 2121, 2171, 18 RP 2263. As soon as he

arrived, they sped off, with Allen at the wheel. 19 RP 2476.

Allen drove the truck to a nearby grocery store. The two left the

truck there. 20 RP 2634. Allen took a city bus home. 23 RP 2948, 2967.

Clemmons only lived a few blocks away. 20 RP 2643, 2657. Later that

morning, only hours after the murders, Allen checked into the New

Horizon Motel in Federal Way under the name "Randy Huey". 24 RP

3069. Police arrested him there on December 1, 2009. 22 RP 2925.

Imams

STATE'S RESPONSE TO APPELLANT'SBRIEF

C. ARGUMENT.

1. THE STATE ADDUCED SUFFICIENT EVIDENCE FOR

THE JURY TO FIND ALL THE ELEMENTS OF THE

CRIMES CHARGED, BEYOND A REASONABLE DOUBT.

In a challenge to the sufficiency of the evidence, the appellate

court determines whether any rational fact finder could have found the

essential elements of the charged crime beyond a reasonable doubt,

viewing the trial evidence in the light most favorable to the State. State v.

Brockob, 159 Wn.2d 311, 336,150 P.3d 59 (2006). An insufficiency

5 - Darcus Allen brief doc

claim "admits the truth of the State's evidence and all inferences that

reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). Direct and circumstantial evidence are

equally reliable. State v. Thomas, 150 Wn. 2d 821, 874, 83 P. 3d 970

2004). The Court defers to the trier of fact on issues of conflicting

testimony, witness credibility, and the persuasiveness of evidence.

Thomas, at 874-875; State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99

1980).

Under RCW 9A.08.020(3), an individual is guilty as an accomplice

if he or she "solicits, commands, encourages, or requests" another person

to commit a crime or aids in its planning or commission, knowing that his

or her act will promote or facilitate the commission of the crime. To prove

accomplice liability, the State must prove more than a person's physical

presence at the crime scene and assent to establish accomplice liability.

State v. Everybodytalksabout, 145 Wn.2d 456,472-73, 39 P.3d 294

2002). But an accomplice need not participate in the crime, need not have

specific knowledge of every element of the crime, and does not have to

share the same mental state as the principal. See, State v. Berube, 150 Wn.

2d 498, 511, 79 P. 3d 1144 (2003); State v. Hoffman, 116 Wn.2d 51, 104,

804 P.2d 577 (1991).

Here, it was undisputed that Maurice Clemmons murdered the four

police officers. It was undisputed that he did so premeditatedly and while

armed with firearms. It was undisputed that the defendant drove

6 - Darcus Allen brief.doe

Clemmons to the scene, waited at the nearby carwash, and drove

Clemmons away after the murders. The question was: did the defendant

act knowingly; did he assist Clemmons by driving him to the Forza,

knowing that Clemmons intended to kill the officers and assist in

Clemmons' escape afterwards?

Days before the murders, the defendant knew that Clemmons had

removed the electronic locating ankle bracelet that Clemmons was

required to wear. 23 RP 2959, 2963. The defendant was present, days

before the murders, at the Clemmons family Thanksgiving dinner in 2009,

where Clemmons stated that he hated the police and threatened to shoot

them. 21 RP 2749. At the same dinner, Clemmons displayed a semi-

automatic pistol. 21 RP 2750, 23 RP 2962.

On November 29, 2009, Clemmons picked the defendant up at the

defendant's home at 7427 So. Asotin Street in Tacoma. 21 RP 2762,

Clemmons had the defendant drive in returning south, eventually onto

South Steele Street. 23 RP 2973.

The self-service carwash where the defendant later ended up is at

the comer of South 112 and Steele. 17 RP 2121. However, the defendant

and Clemmons drove past it and continued south on Steele Street. On an

opposite comer of the same intersection was a Union 76 gas station. 22 RP

2861. It had a video surveillance system. Id. Video analyst Grant

Fredericks showed the jury video from that gas station depicting at least

two light-colored pick-up trucks that drove south on Steele Street just


before 8:00 a.m. 22 RP 2875. The defendant himself admitted to Det.

Kobel that he and Clemmons had driven south on Steele St. past Forza

coffee. 23 RP 2973-2974.

At the same time, the four Lakewood Police officers had arrived at

Forza. Some of the patrol cars were parked in front, on Steele. 17 RP

2110. Greg Richards parked his car on the south side of the building. 17

RP 2162. Another officer parked his car behind the building. 17 RP 2107.

Barista Michelle Chabaya saw Clemmons appear from around the south

side of the building. 17 RP 2112. Both baristas, Michelle Chabaya and

Sara Kispert, saw Clemmons enter right behind Officer Richards. 17 RP

2112, 2162.

After dropping Clemmons off at Forza, the defendant drove back

to the nearby self-service carwash. When the defendant pulled into the self

service carwash, he was alone, 22 RP 2877. No one saw, nor did the video

show, Clemmons walking from the carwash. The video did show (22RP

2882) and witnesses did see him walking back. Bryan, Kirk, and Austin

Waage, across the street at an Arco AM/PM gas station/convenience store,

saw the defendant at the carwash. They all described his actions as

pretending" or going through the motions with the car wash. 19 RP 2471,

2511, 2542. Kirk Waage said that the truck seemed to be ready to leave

when Clemmons arrived (19 RP 2526), and that the defendant seemed to

be waiting for someone, 19 RP 2530.


Flight may be considered as circumstantial evidence of guilty

knowledge. See, State v. McDaniel, 155 Wn. App. 829, 853-854, 230 P.

3d 245 (2010); see, also, State v. Graham, 130 Wn.2d 711, 726, 927 P. 2d

227 (1996)(in context of probable cause).

As soon as Clemmons walked up, rejoining the defendant, they

sped out of the carwash. Witnesses said the truck "peeled out". 17 RP

2122, 2172, 19 RP 2476-2477, 2539, The defendant was in such a hurry

that he tossed the carwash "wand" into the bed of the truck. The wand

snapped off as the defendant sped off. 19 RP 2480, 2525, 2539, 21 RP

2733. The defendant drove Clemmons quickly south on Ainsworth. 20 RP

2576.

The defendant drove the truck to the parking lot of a grocery store

near Clemmons' home and left it there. 20 RP 2625. A police canine unit

unsuccessfully tried to track the occupants of the truck. 20 RP 2374. The

canine officer opined that the occupants may have got out of the truck and

into another vehicle at the location. Id.

After ditching the truck, the defendant took a city bus back home.

23 RP 2967. The bus driver testified that there was a northbound bus stop

conveniently located directly across the street from where police found the

truck abandoned. 24 RP 3105.

Soon thereafter, the defendant showed up at Cicely Clemmons'

house. 21 RP 2761. The defendant almost immediately went to Federal

Way, where he checked into the New Horizon Motel under the name


Randy Huey". 24 RP 3115. During a post-arrest interview, Det. Kobel

asked the defendant's name. The defendant did not answer right away.

First, the defendant asked "Who are you looking for?" 23 RP 2945. Then,

he identified himself as "Randy Huey". Id. In the interview, the defendant

gave Det. Kobel multiple versions of his actions during the past couple of

days and his interaction with Clemmons. 23 RP 2947.

Based on this evidence, a jury could certainly conclude that the

defendant dropped Clemmons off at the coffee shop, knowing Clemmons'

intent was to kill police officers. He himself admitted that he drove

Clemmons to the area. The time frame was very brief; insufficient for

Clemmons to walk the '/4 mile from the carwash to the coffee shop,

struggle with and kill four police officers, himself get shot, and walk back.

The defendant knew of Clemmons' recent threats to kill police and that he

was armed. The jury could conclude from the defendant's flight, hiding

out, and use of an assumed name that he knew what Clemmons was going

to do and that the defendant had assisted him. The jury could conclude that

the defendant further participated where he agreed to wait nearby to pick

Clemmons up to escape. There was sufficient evidence for the jury to

convict the defendant as charged.

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2. THE PROSECUTING ATTORNEYS DID NOT COMMIT

MISCONDICT IN CLOSING WHERE THEY ARGUED

THE LAW AS PROVIDED IN THE JURY

INSTRUCTIONS.

A defendant claiming prosecutorial misconduct bears the burden of

demonstrating that the remarks or conduct was improper and that it

prejudiced the defense. State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d

570 (1995), citing State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577

1991). A defendant can establish prejudice only if there is a substantial

likelihood that the misconduct affected the jury's verdict. State v. Carver,

122 Wn. 2d 300, 306, 93 P. 3d 947 (2004). If a curative instruction could

have cured the error and the defense failed to request one, then reversal is

not required, State v. Binkin, 79 Wn. App. 284, 293-294, 902 P.2d 673

1995), overruled on other grounds by State v. Kilgore, 147 Wn.2d 288,

53 P.3d 974 (2002); see, State v. Warren, 165 Wn. 2d 17, 195 P. 3d 940

2008).

When reviewing an argument that has been challenged as

improper, the court should review the context of the whole argument, the

issues in the case, the evidence addressed in the argument and the

instructions given to the jury. State v. Russell, 125 Wn.2d 24, 85-6, 882

P.2d 747 (1994). Where defense counsel objected to a prosecutor's

I I - Darcus Allen briefdoc

remarks at trial, the trial court's rulings are reviewed for abuse of

discretion. State v. Gregory, 158 Wn.2d 759, 809, 147 P.3d 1201 (2006).

The major issue in this case was whether the defendant knew that

Clemmons was going to go into the coffee shop to kill police officers. The

argument at issue was regarding the mens rea element for an accomplice.

Knowledge may be inferred from circumstantial evidence. If information

is sufficient to cause a reasonable person in the same situation to believe

that a fact exists, the trier of fact may infer that the defendant had

knowledge. State v. Perebeynos, 121 Wn. App. 189, 196, 87 P. 3d 1216

2004): State v. Shipp, 93 Wn. 2d 510,610 P. 2d 1322 (1980). The

prosecuting attorney in the present case was arguing this concept to the

jury. The prosecutor acknowledged the challenge of determining what a

person knows, absent an admission. 29 RP 3544. He accurately pointed

out that the jury could use circumstantial evidence, and with that evidence,

infer that if a reasonable person would have known a fact, the defendant

did. 29 RP 3545.

The state must prove that the defendant did know that he was

assisting in a crime. A jury is permitted to infer the defendant's personal

knowledge if an ordinary person would have had knowledge under the

circumstances but such an inference is not mandatory. State v. Shipp, 93

Wn.2d, at 517. This is different than proving what the defendant "should

have known". A defendant might correctly argue: "Maybe I should have

known, but I did not." In arguing that the defendant did know and the

12 - Darcus Allen briefdoe

permissible inference, the prosecutor conflated the subjective "did" with

the objective "should have".

The prosecutor referred the jury to instruction no. 9 which provides

a clear and accurate statement of the law and told the jurors that they

would be applying that instruction during deliberation. 29 RP 3544-3545,

The court also instructed the jury that the law was contained in its

instructions and that they must disregard any remark, statement, or

argument that was not supported by the law in those instructions. CP 2017.

The jury was clearly instructed that they could infer the defendant's

knowledge by applying a reasonable person standard but they were not

required to do so. See Instruction 9, CP 2026.

A prosecutor's misstatement of the law in closing argument does

not warrant a new trial where the jury was properly instructed. State v.

Classen, 143 Wn. App. 45, 64-65 n. 13, 176 P.3d 582 (2008). Here, the

jury was correctly instructed on each of the elements it needed to find in

order to convict the defendant. A jury is presumed to follow the

instructions given. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184

2001).

In the present case, the jury was properly instructed that:

A person knows or acts knowingly or with knowledge whenhe or she is aware of a fact, facts or circumstances or resultdescribed by law as being a crime.If a person has information which would lead a reasonableperson in the same situation to believe that facts exist which


are described by law as being a crime, the jury is permittedbut not required to find that he or she acted with knowledge.

Instruction 9, CP 2026. The defendant did not object to this instruction.

The jury was also correctly instructed that:

It is your duty to decide the facts in this case based upon theevidence presented to you during this trial. It also is yourduty to accept the law from my instructions, regardless ofwhat you personally believe the law is or what youpersonally think it should be. You must apply the law frommy instructions to the facts that you decide have beenproved, and in this way decide the case.

The lawyers' remarks, statements, and arguments areintended to help you understand the evidence and apply thelaw. It is important, however, for you to remember that thelawyers' statements are not evidence. The evidence is thetestimony and the exhibits. The law is contained in myinstructions to you. You must disregard any remark,statement, or argument that is not supported by the evidenceor the law in my instructions.

See, Instruction 1, CP 2016, 2017.

In cases of prosecutorial misconduct, the touchstone of due process

analysis is the fairness of the trial, i.e., did the misconduct prejudice the

jury thereby denying the defendant a fair trial guaranteed by the due

process clause? Smith v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 71

L.Ed.2d 78 (1982); State v. Weber, 99 Wn. 2d 158, 164, 659 P. 2d 1102

1983). Therefore, the ultimate inquiry is not whether the error was

harmless or not harmless but rather did the impropriety violate the


petitioner's due process rights to a fair trial. State v. Davenport, 100 Wn.

2d 757, 675 P.2d 1213 (1984).

The appellate court should review this argument in the context of

the entire closing and the court's instructions. The Court's focus is less on

what the prosecutor said; but rather on the effect which was likely to flow

from the remarks. See, State v. Emery, 174 Wn. 2d 741, 762, 278 P. 3d

653 (2012). "The criterion always is, has such a feeling of prejudice been

engendered or located in the minds of the jury as to prevent a [defendant]

from having a fair trial?" Id., quoting Slattery v. City ofSeattle, 169

Wash. 144, 148, 13 P.2d 464 (1932).

Here, the prosecuting attorney argued that the jury was permitted

to infer from the circumstantial evidence that the defendant knew that

Clemmons intended to kill the police officers. 29 RP 3544. The prosecutor

referred specifically to the instruction. 29 RP 3545, 3546. The prosecutor

pointed out that his phrase "he should have known" was a summary or

shorthand way to describe the combined concepts of circumstantial

evidence and subjective knowledge. 29 RP 3545. He went on to properly

argue, based on the evidence, that: "if a reasonable person would have

known that Maurice Clemmons was going to go in there and kill these

cops, then his getaway driver knew, too." 29 RP 3545. The defendant's

initial objection was regarding shared premeditation. 29 RP 3545. The

15 - Darcus All= briefdoc

court's ruling was correct under Breube and Hoffman, supra. The

defendant then also objected to the "should have known" argument.

The "should have known" aspect of the prosecutor's argument was

improper. Under the law, a person may only be convicted for the criminal

act that he or she intends or knows, as the elements of the crime require.

The jury may conclude, from circumstantial evidence, that a reasonable

person knowing all the facts and circumstances that the defendant knew

would have known, and therefore that the defendant acted knowingly. The

jury may not find a person guilty of a crime where the defendant did not

have guilty knowledge, but, from all the facts and circumstances, should

have.

The prosecutor went on to repeat that a reasonable person would

know what Clemmons' intent was, and that the defendant was assisting in

it, therefore the defendant knew. 29 RP 3566. Again the prosecutor

argued: "He knew. Really, how could he not." Id. The prosecutor went on

to further argue that the evidence showed that the defendant had the

required knowledge: "He knew, and he knew his actions would help that

murder." 29 RP 3567.

It would have been more correct and legally accurate for the

prosecuting attorney to have focused on how the circumstantial evidence

proved the defendant's intent, rather than including the "should have

16- Darcus Allen brief doe

known" theme. However, the prosecuting attorney also repeatedly

correctly argued the same legal principle of "knowledge" in this context.

He referred the jury to Instruction 9. 29 RP 3546. The jury was correctly

instructed and followed the law.

The prosecutor's argument was made in the initial closing. The

defendant objected, but did not request a jury instruction. In his closing,

the defendant had the opportunity to likewise argue the meaning of

Instruction 9. The defendant could have also pointed out the language of

the instruction and argue that the State was misrepresenting the meaning

of the second paragraph. The defendant touched on that briefly. 29 RP

3604. The defendant made a strong factual argument that, while

Clemmons did commit these murders, the defendant did not know what

Clemmons was going to do, and the defendant had nothing to do with it,

29 RP 3583. He argued that the evidence showed that Clemmons was

delusional and unpredictable. 29 RP 3576-3577. He disputed the evidence

and the prosecutor's conclusions.

No prejudice resulted from the prosecutor's misstatement of the

law. Both sides argued the meaning and application of the instructions.

Both argued the evidence and their theories of the case. The defendant was

able to respond to and rebut the prosecutor's arguments by pointing out a

correct jury instruction. The defendant received a fair trial.


3. THE TRIAL COURT DID NOT ERR IN DENYING THE

DEFENDANT'SMOTION TO SUPPRESS

STATEMENTS MADE DURING HIS ARREST.

a. The defendant does not assign error to thetrial court's Findings from the CrR3.5

hearing.

In reviewing findings of fact on a motion to suppress evidence, the

appellate court only reviews those findings of fact to which error has been

assigned to determine whether substantial evidence in the record supports

them. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).

Unchallenged findings are deemed verities on appeal. Id. at 644; State v.

Eserjose, 171 Wn. 2d 907, 912, 259 P. 3d 172 (2011). The Court reviews

conclusions of law in a suppression order de novo. State v. Armenta, 134

Wn.2d 1, 9,948 P.2d 1280 (1997).

Following the CrR 3.5 hearing, the trial court entered findings on

the disputed and undisputed facts. CP 2172-2178. The defendant does not

assign error to the trial court's findings of fact from the CrR 3.5 hearing.

These Findings are verities.

b. The Findings from the January. 2011 CrR

3.6 hearing are supported by evidence.

The defendant assigns error to Findings 8, 9, 11, and 12 from the

January, 2011 CrR 3.6 hearing. App. Br., at 3. All of these Findings are

supported by evidence and the law]

At the hearing, King County Sheriff Det. Johnson testified that he

had gathered information that the person later identified as the defendant


was the getaway driver. 1121/2011 RP 42-43. The suspect was possibly a

co-conspirator in the murders. Id., at 43. Reggie Robinson had informed

Det. Johnson that the defendant was a close friend or associate to killer

Maurice Clemmons. Id., at 44. Robinson told Det. Johnson that the

defendant was currently stating at the New Horizons Motel. Id., at 45.

Det. Johnson was the person who knocked on the door of room 25

of the New Horizon Motel. 1/21/11 RP 50. He believed the situation was

dangerous because police had reason to believe that the man they were

looking for, "Randy Huey" or "Dorcus", was involved in the homicides as

the driver. Det. Johnson and the other law enforcement personnel present

knew that Clemmons was armed and dangerous and had been killed by

police in Seattle. 1/21/2011 RP 46. They feared that "Randy" or "Dorcus"

would "shoot it out" with the police. 1/21/2011 RP 47-48. Police

considered "Randy" or "Dorcus" armed and dangerous. Id., at 48.

When a woman (later identified as Maurice Clemmons' sister,

Latonya) opened the door, Det. Johnson could see that the defendant was

in the bed, only a few feet from the door. The defendant was partially

covered. Id., at 50. The defendant had pillows around him. Det. Johnson

was concerned that the defendant was armed and a threat. Id.

1 9 - Darcus Allen briefdoe

C. Police could lawfully enter the room withouta warrant, under the exigent circumstances

presente

The trial court found that:

Exigent circumstances existed to detain the defendantbecause of the grievous circumstances of four policeofficers having been murdered for no other reason than theirstatus as police officers, and the alleged getaway driver ofthe murderer being located at the motel.

Reason IV. 8 (CP 812).

Police may enter a premises without a warrant under exigent

circumstances. State v. Smith, 165 Wn. 2d 511, 517-518, 199 P. 3d 386

2009). In State v. Cardenas, 146 Wn. 2d 400, 47 P. 3d 127 (2002), the

Supreme Court laid out six factors to consider in determining whether

exigent circumstances justify a warrantless entry:

1) the gravity or violent nature of the offense with whichthe suspect is to be charged; (2) whether the suspect isreasonably believed to be armed; (3) whether there isreasonably trustworthy information that the suspect isguilty; (4) there is strong reason to believe that the suspectis on the premises; (5) a likelihood that the suspect willescape if not swiftly apprehended; and (6) the entry is madepeaceably.

146 Wn, 2d at 406; Smith, 165 Wn. 2d at 518.

There was no dispute that police were investigating an extremely

violent crime: the deliberate murders of four police officers. The murders


had occurred less than 48 hours earlier. The killer had used two guns and

taken the pistol from one of the victims. The killer was still at large. They

had information that killer was aided by a getaway driver, and that the

driver was staying in room 25 of the motel. They knew that the getaway

driver was known by two names. Police knocked on the door and waited

for someone to open it. The trial court's finding is supported by evidence

and the law.

d. Contacting the defendant and use of force.

Reason IV. 9 states:

It was reasonable for the officers to not take chances with

their own personal safety when contacting the allegedgetaway driver.

Reason IV. I I states:

It was reasonable for the officers to act swiftly to detain thedefendant because there was enough light to recognize him,and he was located next to pillows which obscured hismovements, thereby creating an officer safety risk.

Reason IV. 12 states:

For the officers to have done anything other than what theydid, knowing the circumstances and what had happened,would have been to risk their own lives and the officers did

not have to risk their lives.

No hard and fast rule governs the display of weapons in an

investigatory contact. The court must look at the nature of the crime under


investigation, the degree of suspicion, the location of the stop, the time of

day and the reaction of the suspect to the police, all of which bear on the

issue of reasonableness. State v. Belieu, 112 Wn.2d 587, 600, 773 P.2d 46

1989). In such circumstances, courts are reluctant to substitute their

judgment for that of police officers in the field. Id., at 60 State v.

Collins, 121 Wn.2d 166, 173, 847 P.2d 919 (1993). The court's Reasons

IV. 9, 11, and 12 were supported by the record and reflect the principles

articulated in Belieu and Collins.

C. Police had probable cause to arrest thedefendant.

Probable cause exists when the arresting officer is aware of facts

and circumstances, based on reasonably trustworthy information,

sufficient to cause a reasonable officer to believe that a suspect has

committed or is committing a crime. State v. Afana, 169 Wn.2d 169, 182-

183, 233 P.3d 879 (2010).

Probable cause "boils down, in criminal situations, to a simple

determination of whether the relevant official, police or judicial, could

reasonably believe that the person to be arrested has committed a crime,"

State v. Louthan, 158 Wn. App. 732, 741, 242 P. 3d 954 (2010), quoting

State v. Klinker, 85 Wn.2d 509, 521, 537 P.2d 268 (1975). The relevant

inquiry in a probable cause determination is whether an officer had

objectively sufficient probable cause to arrest for an offense; the officer's


subjective intent to arrest for a particular offense is immaterial. Louthan,

at 742.

In circumstances where police officers act together as a unit, the

fellow officer" rule provides that the collective knowledge of all the

officers involved in the arrest may be considered in determining whether

probable cause existed. State v. Nall, 117 Wn. App. 647, 650, 72 P.3d 200

2003). Under the fellow officer rule, the information known to one officer

may be considered in deciding whether or not there was probable cause to

arrest, even if it was not expressly communicated to the actual arresting

officer. State v. Wagner-Bennett, 148 Wn. App. 538, 542, 200 P. 2d 739

2009).

Here, the testimony and the findings of fact state that Maurice

Clemmons murdered the four police officers at a coffee shop. Undisputed

Fact 1.1. CP 2172. The defendant drove Clemmons to the area in a white

pick-up truck. Undisputed Fact 1.2. CP 2172. A witness told Det. Johnson

that the defendant had admitted droving Clemmons to the area of the

murder. Undisputed Fact I. 10. CP 2174. Det. Johnson knew of additional

information from other police officers confirming that the defendant

Randy Huey") was Clemmons' driver. Undisputed Fact 1. 11. From

these facts alone, a police officer or the trial court could reasonably

believe that the defendant had committed a crime: by driving, helped

Clemmons commit the murders or get away; and was therefore either an

accomplice or rendered criminal assistance.


In this case, the police did not need a bench warrant or a search

warrant to knock on the defendant's motel room door. The display of

weapons by police, and their entry to the room to do a protective frisk

were reasonable and prudent given the nature of the crimes and all the

factors known to the police. Police had probable cause to arrest the

defendant for his involvement in the murders of four police officers. At

minimum, police had reason to detain the defendant for investigatory

purposes. The police could lawfully contact the defendant to question him

regarding the murder of the officers.

The defendant's statements at the scene were spontaneous. His

statements were not in response to questioning or interrogation. CrR 3.5

Undisputed Fact I. 15; Conclusion IV. 3. It is unclear if the statements

were even made before or after the police entered the room. The alleged

illegal act of entering the room did not result in the discovery or

production of evidence. There is nothing to indicate that the act of the

police stepping across the threshold to arrest the defendant precipitated the

defendant's statements.

4. THE TRIAL COURT DID NOT ERR IN DECLINING

TO INSTRUCT THE JURY WHERE RENDERING

CRIMINAL ASSISTANCE IS NOT A LESSER-

INCLUDED OFFENSE OF FIRST-DEGREE MURDER.

A defendant is entitled to a lesser-included offense instruction if

1) there is evidence to support an inference that the lesser crime was

committed; and (2) each element of the lesser offense is a necessary

24 - Darcus A len briefdoe

element of the offense charged. State v. Workman, 90 Wn.2d 443, 447-48,

584 P.2d 382 (1978). A person is equally guilty of a crime if it is

committed by the conduct of another person for which he or she is legally

accountable including as "an accomplice of such other person in the

commission of the crime". See, RCW 9A.08.020(1), (2)(c); State v.

Carter, 154 Wn.2d 71, 78, 109 P.3d 823 (2005).

The analysis here focuses on the second Workman requirement.

A] person "renders criminal assistance" if, with intent toprevent, hinder, or delay the apprehension or prosecution ofanother person who he knows has committed a crime orjuvenile offense or is being sought by law enforcementofficials for the commission of a crime or juvenile offenseor has escaped from a detention facility, he:1) Harbors or conceals such person; or2) Warns such person of impending discovery orapprehension; or3) Provides such person with money, transportation,disguise, or other means of avoiding discovery orapprehension; or4) Prevents or obstructs, by use of force, deception, orthreat, anyone from performing an act that might aid in thediscovery or apprehension of such person; or5) Conceals, alters, or destroys any physical evidence thatmight aid in the discovery or apprehension of such person;or

6) Provides such person with a weapon.

RCW 9A.76.050 (emphasis added).

This statutory language implies that a crime or escape has already

been committed. See State v. Anderson, 63 Wn. App. 257, 818 P.2d 40

199 review denied, 118 Wn.2d 1021 (1992). Clemmons' and the

25 - Darcus Allen brief.doc

defendant's liability, whether as principal or accomplice, occurred at the

time of the murders. The defendant was charged as a participant, not one

involved after the fact. Therefore, the crime of rendering criminal

assistance contains elements that were not necessary elements of the

charged crimes, and is not a lesser offense. Rendering criminal assistance

under RCW 9A.76.050 is not a "lesser included offense" of accomplice

liability. The trial court did not err in refusing the requested instructions.

5. FACTORS FOR A SENTENCE OUTSIDE (ABOVE)THE STANDARD SENTENCING RANGE APPLY TO

ALL PARTICIPANTS IN A CRIME.

a. Caselaw holds that exceptional sentences maybe imposed on accoWlices.

As pointed out above, one who is an accomplice to a crime is as

guilty of committing the crime as the principal or other participant. See,

Carter, 154 Wn. 2d at 78. The law does not distinguish between

exceptional sentences for accomplices and participants. In State v.

Hawkins, 53 Wn. App. 598, 769 P. 2d 856 (1989), the defendant was

convicted of murder, under accomplice liability. The court imposed an

exceptional sentence, aggravated by deliberate cruelty to the victim. Id., at

606. Hawkins objected, arguing that the aggravating factor could not be

applied to him, as he was "only" an accomplice. The Court of Appeals

disagreed, saying: "[W]e will not split hairs in an effort to determine the

greater or lesser roles of these three participants." Id.


In State v. Sweet, 138 Wn.2d 466, 980 P.2d 1223 (1999), the

defendant was convicted of first degree burglary and first degree assault

under accomplice liability. Finding deliberate cruelty, particular

vulnerability, and abuse of a position of trust, the trial court imposed an

exceptional sentence above the standard range. He asserted that he stayed

in the vehicle and never entered the house. Id., at 479. He, like Hawkins,

argued that the aggravating factor did not apply to him as an accomplice.

138 Wn. 2d at 482. The Supreme Court rejected this argument and

affirmed his exceptional sentence, Id., at 484.

b. McKim and statutory application.

The defendant's reliance on State v. McKim, 98 Wn.2d 111, 653

P.2d 1040 (1982) is an incomplete analysis. McKim interpreted the

language a pre-SRA statute; former RCW 9.95.040, a deadly weapon

sentence enhancement. The Court looked at the language of the complicity

statute, former RCW 9A.08.020, to determine if the sentence enhancement

was applicable to accomplices. Id., at 116.

In State v. Silva-Baltazar, 125 Wn.2d 472, 886 P.2d 138 (1994)

and State v. Pineda-Pineda, 154 Wn. App. 653, 226 P. 3d 164 (2010), the

Courts examined the statutory language of RCW 69,50.435, the school

zone sentencing enhancement as it applied to accomplices. Based upon the

statutory language and the facts of the respective cases, the same

enhancement was affirmed against the accomplice in Silva-Baltazar, and

reversed in Pineda-Pineda.


The analyses ofMcKim and Pineda-Pineda are also

distinguishable due to the nature of how the sentence is extended beyond

the standard range. Sentence enhancements, like those discussed in

McKim and Pineda-Pineda, are different than exceptional sentences.

Sentence enhancements under RCW 9.94A.533 (3)-(13) are mandatory;

they "shall be added". Id. A sentence outside (above) the standard range

under RCW9.94A.535(2)(a)-(d) and (3)(a)-(cc) are discretionary; they

may" be imposed. Id. In both McKim and Pineda-Pineda the Courts

were concerned regarding the "strict liability" of the enhancement statutes.

See, McKim, 98 Wn. 2d at 117; Pineda-Pineda, 154 Wn. App. at 662.

Because the imposition of an exceptional sentence is discretionary, the

danger of "strict liability" is avoided.

C. The statutory language of RC9.94A.535(3)(r) and (v) permits applicationagainst an accomplice.

The application of the exceptional sentence statute to an

accomplice depends on which aggravating circumstance in RCW

9.94A.535 is being considered. The aggravating circumstances set forth in

9.94A.535 cover abroad range of factors. Some of the circumstances

focus on the defendant's actions such as when the defendant manifests

deliberate cruelty to the victim, RCW9.94A.535(3)(a), or uses his or her

position of trust, confidence, or fiduciary responsibility to facilitate the

commission of the offense, RCW9.94A.535(3)(n). Other circumstances


discuss what the defendant knew or should have known about his victim,

such as being particularly vulnerable, RCW9.94A.535(3)(b), or pregnant,

RCW9.94A.535(3)(c). Other circumstances do not focus on the

defendant's actions or what he knew, but on the impact of the crime, i.e. a

rape of child resulting in the victim's pregnancy, RCW9.94A.535(3)(i), or

the victim's injuries substantially exceeding the level of bodily harm

necessary for the element of crime, RCW9.94A.535(3)(y). Some

aggravating circumstances simply describe some aspect of the offense: it

involved a high degree of sophistication or planning, RCW

9.94A.535(3)(m), or an invasion of the victim's privacy, RCW

9.94A.535(3)(p).

Examination of the varied wording of these aggravating

circumstances indicates that the Legislature intended some of them to

apply to any participant in the substantive crime while others must be

attributable to a particular defendant. Generally, the Legislature's use of

the phrase "the defendant" in setting forth an aggravating circumstance

signals its intent that the circumstance be assessed against the

individualized defendant while use of the term "the current offense"

signals its intent that the aggravating circumstance can be applied to any

participant in the crime.

The language of RCW9.94A.535(3)(r)and (v) apply the factor to

the offense, not the particular defendant:


r) The offense involved a destructive and foreseeableimpact on persons other than the victim

Similarly:

v) The offense was committed against a law enforcementofficer who was performing his or her official duties at thetime of the offense, the offender knew that the victim was alaw enforcement officer, and the victim's status as a lawenforcement officer is not an element of the offense.

Thus, the language focuses on the status of the victim, not on the

defendant". The analyses in McKim and Pineda-Pineda focus on the

language and behavior regarding the defendant.

In this case, the aggravating factor pertains to the nature of the

offense committed. There is no reference to "the defendant" or even an

indirect reference to the entity committing the crime. These factors do not

change from one participant to the next. Once the jury finds the crime

meets the criteria set forth in the aggravating circumstance, it is applicable

to all the participants in the crime and need not be assessed on an

individualized basis. Such an aggravating circumstance should apply

equally to all participants in a crime regardless of whether they are the

principal" or "accomplice"; minor or major participant.

Here, the State alleged sentencing aggravating factors that the

victims were law enforcement officers performing their official duties at

the time, and that the offense involved a destructive and foreseeable


impact on a person other than the victim, under RCW9.94A.535(3)(r)

and(v). The jury found the presence of factor (v), the victims were law

enforcement officers. It was equally applicable to the defendant as an

accomplice as a principal.

6. THE TRIAL COURT DID NOT ABUSE ITS

DISCRETION WHERE IT DECLINED TO INTERFERE

WITH CERTAIN SPECTATORS' RIGHTS UNDER THE

FIRST AMENDMENT OF THE UNITED STATES

CONSTITUTION AND ARTICLE 1, § 22 OF THE

STATE CONSTITUTION.

In a criminal trial, the court must balance fundamental

constitutional principles and rights of those present. See, Article 1, §§ 10

and 22 of the Washington Constitution; 5 6 and 14 Amendments to

the United States Constitution. The I" Amendment of the United States

Constitution guarantees freedom of expression. The 5" and 6th

Amendments accord an accused the rights to a fair, public, trial. Article 1,

10 and 22 of the Washington Constitution require a public trial and an

open courtroom. See, e.g., State v. Bone-Club, 128 Wn. 2d 254, 259-260,

906 P. 2d 325 (1995). The public in general and the accused each have a

right to an open, public trial. Each may assert and enforce these rights.

See, Bone-Club, supra, and Allied Daily Newspapers v. Eikenberry, 121

Wn.2d 205, 210, 848 P.2d 1258 (1993).


a. The trial court did not abuse its discretion in

permitting spectators to wear shirtscommemorating the victims.

A silent showing of sympathy or affiliation in a courtroom, without

more, is not inherently prejudicial. State v. Lord, 161 Wn. 2d 276, 284,

165 P. 3d 1251 (2007). In Lord, the trial court allowed the presence of

spectator buttons for a portion of the trial. When courtroom conduct is

challenged as inherently prejudicial to the defendant, the court must

determine whether "an unacceptable risk is presented of impermissible

factors coming into play" to affect the jury. Lord, at 285, citing Holbrook

v. Flynn, 475 U.S. 560, 570, 106 S. Ct. 1340, 89 L.Ed.2d 525 (1986). The

court should consider the scene presented to the jury and determine

whether it was "so inherently prejudicial as to pose an unacceptable threat

to defendant's right to a fair trial." Lord, 161 Wn. 2d at 285.

Silent displays of affiliation by trial spectators, which do not

explicitly advocate guilt or innocence, are permissible. In re Personal

Restraint of Woods, 154 Wn.2d 400, 416, 114 P.3d 607 (2005). Woods,

like the defendant in the present case, was charged with aggravated first

degree murder. Woods was facing the death penalty.

In Woods, the defendant complained of black and orange

remembrance ribbons worn by spectators during the trial. Id. at 417.

Woods objected to the presence of the ribbons, and requested that they be

removed. The trial judge allowed the ribbons, with the suggestion that the

32 - Darcus At fen briefdoc

court could provide a jury instruction, if necessary, to mitigate any

prejudicial effects. Id.

The Supreme Court held that this matter was completely within

the trial court's discretion. The Court applied the U.S. Supreme Court's

decision in Holbrook v. Flynn, 475 U.S. at 572 as the controlling law and

upheld the conviction. 154 Wn, 2d at 416-418. The trial court must "look

at the courtroom scene presented to the jury and determine whether what

they saw was so inherently prejudicial as to pose an unacceptable threat to

the defendant's right to a fair trial". 154 Wn. 2d at 417.

Here, spectators wore shirts depicting the names of the deceased

officers, with the words "You are not forgotten". 24 RP 3024. The

prosecuting attorney described the shirts as "subdued and respectful" and

tasteful and muted". 24 RP 3025. Unlike the buttons in Lord, the shirts

did not depict photographs of the officers. Id. The shirts did not have

anything designed to draw the jurors' attention. Id. The shirts did not

advocate a verdict or any finding the jury was to make. The shirts did not

express a point of view or opinion regarding the proceedings.

The spectators had the right to express themselves and be present

in the courtroom. The defendant had a right to a fair trial. The trial court

viewed the shirts and their purpose. After evaluating the scene presented

in the courtroom, the court weighed the rights of the spectators and the

rights of the defendant. He denied the motion. There was no error.


The following day, the defense again objected to the same shirts

the spectators were wearing. 25 RP 3156. Counsel extended the objection

to the officers in uniform that were present as spectators. 25 RP 3157. An

officer wearing a uniform in court, as a spectator or otherwise, is

permissible under Flynn, 475 U.S. at 571. In Flynn, four state troopers,

armed and in uniform, sat in the front row of the spectators' section. They

were part of a security detail that also included two deputy sheriffs and six

Committing Squad officers; all in uniform. The Supreme Court found that

the presence of 12 officers, all armed and in uniform, was not inherently

prejudicial to Flynn's right to a fair trial. Here, the trial judge was able to

assess the appearance and potential impact of the officers as spectators.

There was no error.

b. The defendant waived this issue where he failed

to request a curative instruction or a mistrial.

The defendant did not make a motion for mistrial or for a curative

jury instruction. Such inaction has been held to constitute waiver, unless

manifest constitutional error is found. See State v. Hoffman, 116 Wn. 2d

51, 93, 804 P.2d 577 (1991) ("Reversal is not required if the error could

have been obviated by a curative instruction which the defense did not

request."). A mistrial would have been appropriate only if an error or

misconduct was s so prejudicial that it could not be cured, and thus, the


defendant did not receive a fair trial. State v. Hopson, It 3 Wn.2d 273,

284-85, 778 P.2d 1014 (1989). A defendant generally cannot decline to

ask for a mistrial or Jury instruction, gamble on the outcome, and when

convicted, reassert the waived objection.

Here, defense counsel twice called the spectators' shirts to the

court's attention. 24 RP 3024, 25 RP 3156. The defense requested that the

court order that the shirts be covered or turned inside-out. 24 RP 3024.

The defense did not request a curative instruction or a mistrial. Therefore,

the defendant waived this argument on appeal.

D. ASSIGNMENTS OF ERROR.

1. The trial court abused its discretion where, considering the

evidence in the light most favorable to the State, it found that no

reasonable juror would have found all the elements of felony murder,

specifically that the principal actor, Maurice Clemmons, intended to

assault the victims.

2. The trial court erred in finding that the evidence required

the jury to find the defendant guilty or not guilty of premeditated murder,

but not felony murder in the second degree.


E. ISSUES PERTAINING TO APPELLANTS ASSIGNMENTS OF

ERROR

1. Whether the trial court accorded the proper weight to the

State's evidence of felony murder?

2. Whether the evidence applied only to the theory of

premeditated murder, to the exclusion of felony murder? Whether the

evidence required a verdict of all or nothing/"stop or go", in the words of

the trial court, to the exclusion of a jury verdict on felony murder?

3. Whether the evidence [in the light most favorable to the

State] could have supported a verdict of felony murder, predicated on

assault?

F. ARGUMENT.

1. THE TRIAL COURT ERRED IN DISMISSING COUNTS

V-VIII, FELONY MURDER.

It is difficult to tell if the court's error is one of law or an abuse of

discretion. The trial court correctly permitted the filing of the Amended

Information which added four counts of felony murder regarding the same

criminal acts. See, e.g., State v. Womac, 160 Wn. 2d 643, 160 P. 3d 40

2007). The court failed to specifically articulate how or why the evidence

did not support the felony murder charges. The court several times

described its view that the evidence either supported premeditated murder

or nothing: that the case was "either a red light or a green light". 27 RP


3365, 28 RP 3446, 3489, 3504-3505. The court, therefore, seemed to think

that the evidence could not support both premeditated murder and felony

murder at the same time. This is incorrect. See e.g., State V. Roberts, 142

Wn.2d 471, 513-514, 14 P.3d 713 (2000).

A trial court's decision to dismiss charges is reviewable under the

manifest abuse of discretion standard. State v. Puapuaga, 164 Wn. 2d

515, 520, 192 P. 3d 360 (2008). A decision is "manifestly unreasonable" if

the court, despite applying the correct legal standard to the supported

facts, adopts a view that no reasonable person would take, and arrives at a

decision outside the range of acceptable choices. State v. Rohrich, 149

Wn.2d 647, 654, 71 P. 3d 638 (2003)(intemal cites omitted).

When deciding whether to dismiss a charge for insufficiency of

evidence, the trial court views the evidence in the light most favorable to

the State, and determines if any rational trier of fact could find guilt

beyond a reasonable doubt. State v. Collins, 112 Wn.2d 303, 306-307, 771

P.2d 350 (1989). A motion to dismiss admits the truth of the State's

evidence and all the inferences which could reasonably be drawn from that

evidence. State v. Jesse, 65 Wn.2d 510, 512, 397 P.2d 1018 (1965); See,

also, State v. Brockob, 159 Wn. 2d 311, 336, 150 P. 3d 59 (2006).

As argued earlier in this brief, the jury had evidence that the

defendant knew that Clemmons intended violence to the police and others.

While Clemmons had displayed a pistol at Thanksgiving, there was no

direct evidence that the defendant knew that Clemmons had a gun at the

37 - Darcus Men briefdoc

time the defendant left Clemmons at the Forza coffee shop. Therefore, a

reasonable juror could conclude that the defendant knew that Clemmons

was at least going to assault the officers.

The trial court employed the correct legal standard in reviewing the

evidence: prima facie evidence in the light most favorable to the State. 28

RP 3442. The court initially agreed with the State's argument and decided

to send the felony murder determination to the jury. 28 RP 3460. The

court later re-initiated the argument regarding the felony murder counts.

28 RP 3478.

Where the defendant was equally complicit in Clemmons' assault

on the police, the defendant would be complicit in an assault which

resulted in death. The State would only have been required to prove the

defendant's knowledge that he was assisting Clemmons' criminal assault

on the victims. It would have been unnecessary for the State to prove the

defendant's actual knowledge of Clemmons' possession of a firearm or

whether he intended to assault or to kill. See, State v. Rice, 102 Wn. 2d

120, 125-126, 683 P. 2d 199 (1984).

The relationship between assault and murder has been discussed at

length in this State. This discussion culminated in In re Personal

Restraint ofAndress, 147 Wn.2d 602, 56 P3d 981 (2002), which held

that felony murder could not be predicated on assault because the murder

included assaultive conduct. Id., at 610, The Legislature immediately

reacted to Andress by reasserting and clarifying that felony murder could


be predicated on assault. See, Laws of 2003, chapter 3 § 2, Findings —

Intent; RC 9A.32.050(l)(b).

In the present case, the evidence could be equally applied to prove

the charged felony murder, predicated on assault, as well as premeditated

murder. There is no question, had one of the officers survived, the

defendant could have lawfully been charged with, and convicted of, of

felony assault, based upon the same evidence. Clemmons necessarily

assaulted the officers when he shot them. As argued above, in the

sufficiency of evidence section of this brief, the evidence showed that the

defendant knew that Clemmons was going into the coffee shop to shoot

the officers. This evidence supported both premeditated murder and felony

murder. The court erred in dismissing counts V-VIII.

G. CONCLUSION,

The defendant received a fair trial where the State adduced

sufficient evidence to carry its burden of proof beyond a reasonable doubt.

The State's closing argument did not deprive the defendant of a fair trial.

The trial court did not err in ruling on jury instructions, spectator behavior,

imposing an exceptional sentence, or in admitting the defendant's

statements. The State respectfully requests that the judgment be affirmed.

The trial court erred where it failed to accord the proper weight to

the evidence and apply it equally to the felony murder counts. The

evidence equally supported a jury determination on premeditated murder

39- Darcus Allen briefdoc

and felony murder. If this case is reversed and remanded for a new trial,

the State respectfully requests that the trial court's dismissal of counts V-

VIII be reversed.

DATED: September 27, 2012.

MARK LINDQUISTPierce CountyPro tiecu ing Attorney4V -IU4 C

thomas C. RobertsDeputy Prosecuting AttorneyWSB # 17442

Certificate of Service:

The undersigned certifies that on this day she defiv red by . S. ma' rABC-LMl delivery to the attorney of record for the appellantc/o his attorney true and correct copies of the document to which this certificateis attached. This statement is certified to be true and correct under penalty ofperjury of the laws of the State of Washington. Signed at Tacoma, Washington,on the date below.

Date Signature


PIERCE COUNTY PROSECUTOR

September 28, 2012 - 10:38 AM

Transmittal Letter

Document Uploaded: 422573 - Respondent Cross - Appellant's Brief.pdf

Case Name: St. v. Allen

Court of Appeals Case Number: 42257 -3

Is this a Personal Restraint Petition? '; Yes No

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Sender Name: Therese M Kahn - Email: tnicholCwco.pierce . wa,us

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